SRC-SLL C.S.H.B. 2776 75(R)BILL ANALYSIS


Senate Research CenterC.S.H.B. 2776
By: Jackson (Brown)
Natural Resources
5-15-97
Committee Report (Substituted)


DIGEST 

The federal superfund program was established to clean up abandoned
hazardous waste sites that pose an imminent threat to public heath and
safety or the environment.  The state superfund program was created to
address hazardous waste sties that pose a threat, but less severe than
federal sites.  The state program is funded by fees on the disposal of
hazardous waste, the purchase of lead acid batteries, and the purchase of
automotive oil.  However, there are concerns that program revenues may be
inadequate to remediate the superfund sites being evaluated.  This bill
will provide regulations for state superfund sites. 

PURPOSE

As proposed, C.S.H.B. 2776 provides regulations for state superfund sites.

RULEMAKING AUTHORITY

This bill does not grant any additional rulemaking authority to a state
officer, institution, or agency. 

SECTION BY SECTION ANALYSIS

SECTION 1. Amends Section 361.133, Health and Safety Code, by adding
Subsections (g)-(i) to authorize the executive director of the Texas
Natural Resource Conservation Commission (executive director) to use money
in the Hazardous and Solid Waste Remediation Fee Fund, including interest
credited under Subsection (b)(4), for expenses concerning a cleanup or
removal of a spill, release or potential threat of release of a hazardous
substance if the site is eligible for listing under Subchapter F, proposed
for listing under Subchapter F, or listed under the state registry before
September 1, 1989, and meets certain requirements, notwithstanding
Subsection (c).  Prohibits the Texas Natural Resource Conservation
Commission (TNRCC) from using money in the hazardous and solid waste
remediation fee fund to clean up certain items if TNRCC collects a fee
that is deposited in a dedicated fund established for the purpose of
cleaning up a facility, tank or site. Requires TNRCC to publish notice of
its intent to perform the cleanup or removal in the Texas Register within
a certain time period before TNRCC begins a cleanup or removal. 

SECTION 2. Amends Section 361.136(i), Health and Safety Code, to require
the storage, processing, or disposal of industrial solid wastes or
hazardous wastes generated in a removal or remedial action in this state
conducted by the U.S. Environmental Protection Agency (EPA) to be exempt
from the assessment of a waste management fee under this section.  Makes a
nonsubstantive change. 

SECTION 3. Amends Section 361.183(a), Health and Safety Code, to require
the executive director, before listing a facility on the state registry,
to determine whether the potential danger to public health and safety or
the environment at the facility can be resolved by an agreement under
Subchapter S, as added by Chapter 986, Acts of the 74th Legislature,
Regular Session, 1995. 

SECTION 4. Amends Chapter 361F, Health and Safety Code, by adding Section
361.1855, as follows: 

Sec.  361.1855.  PROPOSAL OF LAND USE OTHER THAN RESIDENTIAL.  Sets forth
regulations regarding a public meeting on the appropriate use of land on
which a facility is  located that is the subject of a remedial
investigation/feasibility study other than residential use. 

SECTION  5. Amends Section 361.187(b), Health and Safety Code, to require
TNRCC to publish notice of the meeting in the Texas Register and in a
newspaper of general circulation in the county in which the facility is
located at least 30 days, rather than 45 days, before the date of the
public meeting.  Makes a conforming change. 

SECTION 6. Amends Section 361.188(a), Health and Safety Code, to make
conforming changes.  

SECTION 7. Amends Section 361.189, Health and Safety Code, to authorize
the executive director to request TNRCC to take certain actions regarding
a facility.  Provides that if TNRCC deletes a facility from the state
registry because the cleanup of the facility is being addressed under
Subchapter S, the facility automatically reverts to the status the
facility had immediately before the facility was deleted from the registry
on the date of the executive director's determination that the cleanup of
the facility is not being addressed adequately.  Provides that a public
meeting is not required for an action under this subsection. 

SECTION 8. Amends Sections 361.194(b) and (c), Health and Safety Code, to
require the executive director to determine whether to prepare an
affidavit.  Requires the executive director, in making the determination,
to proceed in the manner that the executive director determines will most
likely result in the least overall costs to the state after any cost
recovery action.  Makes a nonsubstantive change. 

SECTION 9. Amends Section 361.197, Health and Safety Code, by adding
Subsection (d), to require TNRCC to file a cost recovery action against
each responsible party for the total costs of an action taken under
certain sections. 

SECTION 10. Amends Section 361.200, Health and Safety Code, as follows:

Sec.  361.200.  New heading: SETTLEMENT.  Authorizes the settlement
program to include certain terms.  Makes conforming and nonsubstantive
changes. 

SECTION 11. Amends Section 361.271, Health and Safety Code, by adding
Subsections (e) and (f), to provide that a fiduciary's responsibility for
solid waste is subject to Subchapter T.  Provides that a lender's
responsibility for solid waste is subject to Subchapter U. 

SECTION 12. Amends Section 361.277, Health and Safety Code, as follows:

Sec.  361.277.  New heading: EFFECT OF SETTLEMENT AGREEMENT WITH STATE.
Sets forth the effects of a settlement agreement with the state.  Deletes
existing text regarding an action for contribution. 

SECTION 13. Amends Section 361.343, Health and Safety Code, to require the
court, in apportioning costs under Subsection (a), to credit a responsible
party's share of the costs of eliminating a release or threatened release
of solid waste the party's expenditures related to the cleanup at issue if
TNRCC or the executive director approves the cleanup.  Requires the court
to reduce in an equitable and just manner the party's proportional share
of the cost if the expenditures were made before the property was proposed
to be listed on the state registry and TNRCC or the executive director
approves the cleanup.  Makes a conforming change. 

SECTION 14.  Amends Section 361.344(a), Health and Safety Code, to
authorize a person who conducts a removal or remedial action that is
approved by TNRCC and is necessary to address a release or threatened
release may bring suit in a district court to recover the reasonable and
necessary costs of that action.  Provides that this right is in addition
to the right to file an action for contribution, indemnity, or both in an
appeal proceeding or in an action brought by the attorney general.  Makes
conforming changes. 

SECTION 15. Amends Chapter 361, Health and Safety Code, by adding
Subchapters T-V, as  follows: 

SUBCHAPTER T.  FIDUCIARY LIABILITY

Sec.  361.651.  DEFINITIONS.  Defines "fiduciary," "fiduciary capacity,"
and "solid waste facility."  

Sec.  361.652.  LIABILITY OF FIDUCIARIES.  Sets forth the liability of
fiduciaries.   

SUBCHAPTER U.  LENDER LIABILITY

Sec.  361.701.  DEFINITIONS.  Defines "extension of credit," "financial or
administrative function," "foreclosure," "foreclose," "lender,"
"operational function," "security interest," and "solid waste facility." 

Sec.  361.702.  EXCLUSION OF LENDERS NOT PARTICIPANTS IN MANAGEMENT.
Defines "owner or operator."  Sets forth regulations regarding the
exclusion of lenders who are not participants in management. 

Sec.  361.703.  PARTICIPATION IN MANAGEMENT.  Defines "participation in
management."  Sets forth regulations regarding lenders who are
participants in management.  

SUBCHAPTER V.  IMMUNITY FROM LIABILITY OF INNOCENT OWNER OR OPERATOR

Sec.  361.751.  DEFINITIONS.  Defines "contaminant" and "innocent owner or
operator." 

Sec.  361.752.  IMMUNITY FROM LIABILITY; ACCESS TO PROPERTY.  Sets forth
regulations regarding immunity from liability and the granting of access
to property for purposes of investigation or remediation. 

Sec.  361.753.  CERTIFICATION.  Sets forth regulations regarding
certification as an innocent owner or operator. 

Sec.  361.754.  RIGHTS OF INNOCENT OWNER OR OPERATOR REGARDING
CONTAMINATION FROM SOURCE NOT LOCATED ON OR AT PROPERTY.  Sets forth the
rights of an innocent owner or operator regarding contamination from a
source not located on or at the property. 

SECTION 16. Amends Chapter 2155C, Government Code, by adding Section
2155.145, as follows: 

Sec.  2155.145.  CERTAIN PURCHASES BY TEXAS NATURAL RESOURCE CONSERVATION
COMMISSION.  Provides that TNRCC is delegated all purchasing functions
relating to the administration of Subchapters F and I, Chapter 361, Health
and Safety Code, subject to the rules adopted by the General Services
Commission under Section 2155.132(c). 

SECTION 17. Amends Section 2166.003(a), Government Code, to provide that
this chapter does not apply to an action taken by TNRCC under Subchapter F
or I, Chapter 361, Health and Safety Code, unless otherwise provided. 

SECTION 18. Amends Chapter 2253A, Government Code, by adding Section
2253.002, as follows: 

Sec.  2253.002.  EXEMPTION.  Provides that this chapter does not apply to
a public work contract entered into by a state agency relating to an
action taken under Subchapter F or I, Chapter 361, Health and Safety Code,
or Subchapter I, Chapter 26, Water Code. 

SECTION 19. Amends Section 26.265, Water Code, by adding Subsections
(h)-(j), to make  conforming changes. 

SECTION 20. Effective date: September 1, 1997.

SECTION 21. Emergency clause.         


SUMMARY OF COMMITTEE CHANGES

SECTION 14.

Amends Section 361.344(a), Health and Safety Code, to make nonsubstantive
changes. 

SECTION 15.

Amends Section 361.652(c), Health and Safety Code, to provide that
Subsections (a) and (d) do not limit the liability pertaining to a release
or threatened release of solid waste if gross negligence or wilful
misconduct of a fiduciary causes or contributes to the release or
threatened release. 

Amends Section 361.701(4), Health and Safety Code, to redefine "lender."

Amends Section 361.751, Health and Safety Code, to redefine "contaminant"
and "innocent owner or operator." 

Amends Section 361.752, Health and Safety Code, to provide regulations
regarding a person that acquires a portion of a tract on which the source
of a release of contaminants is located; to authorize payment for access
to property; and to make a nonsubstantive change. 

Amends Section 361.753, Health and Safety Code, to require TNRCC to
deposit certain fees to the credit of the hazardous and solid waste
remediation fee fund.  Makes conforming and nonsubstantive changes. 

SECTION 18.

Amends Section 2243.002, Health and Safety Code, to insert the chapter for
Subchapter F and I, Health and Safety Code.